MOOLCHAND Vs. VISHAN SINGH

JUDGEMENT

(1.) THIS appeal by plaintiff is directed against the judgment and decree dated 17/9/2004 in Civil Appeal No. 124 -A/2002 confirming the judgment and decree dated 1/11/2002 in Civil Suit No. 13 -A/2000. Plaintiff's suit for permanent injunction has been dismissed.

(2.) PLAINTIFF filed a suit inter alia contending that the house constructed over the suit land falling in survey nos. 361 and 325 admeasuring 0.167 hectare in village Bajranggarh, Tahsil and District Guna, for last two generations is in peaceful, continuous and uninterrupted possession of plaintiff, who has acquired title by adverse possession. It is submitted that a civil dispute between father of plaintiff and defendants no. 1 and 3 was filed bearing case No. 4Aa/70/83 -84, which was ultimately dismissed on 23/1/1986 and since thereafter plaintiff is in exclusive possession of the suit land, one portion whereof has been sold to one Devilal and one portion to one Kamla w/o Babulal for construction of house. No objection on said sale been effected and construction carried out has been taken by defendants. Plaintiff is residing on the part of the suit land and also doing cultivation on rest of the land, however, no objection or resistance has been raised by the defendants. On aforesaid premises, plaintiff claims to have perfected title by adverse possession. Having apprehended forcible dispossession, the plaintiff filed the instant suit for permanent injunction.

(3.) ON aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Trial Court inter alia held that plaintiff failed to establish that he is in possession over the suit land since 1/11/2002 i.e. for last 12 years and, therefore, acquired title by adverse possession and even the plaintiff is not found to be in legal possession, therefore, dismissed the suit for permanent injunction. On appeal, the first appellate court upon perusal of the pleadings and the evidence led by the plaintiff, observed that plaintiff has pleaded to be in possession over the suit land continuously for last 12 years and to have acquired title by adverse possession, whereas evidence led is to the effect that plaintiff is in possession of the suit land by virtue of the same being his ancestral property and, therefore, there is apparent inconsistencies between the pleadings and evidence led, hence, such evidence cannot be read in support of the alleged possession of plaintiff, claimed to be adverse possession in the plaint. In the depositions of other witnesses viz. PW -2, Heeralal, and PW -3, Nizamuddin, it is found that the depositions suffer from inherent contradictions as regards claim of adverse possession and, therefore, not worth credit. Hence, plaintiff is not found to be in legal possession of the suit property for want of any evidence on record to establish plaintiff's peaceful, continuous and uninterrupted possession over the suit land. With the aforesaid findings, first appellate court confirmed the findings of the trial court and dismissed the appeal.